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To mayor, NYC soda ruling just 'temporary setback'

By JENNIFER PELTZ Associated Press

Posted:
03/12/2013 12:42:06 AM MDT

Updated:
03/12/2013 05:57:39 PM MDT

NEW YORK—Despite Mayor Michael Bloomberg's bullishness, political realities and legal questions make for an uncertain future for one of the premier pieces of his legacy: a now-blocked ban on supersized sugary drinks.

The city lost no time Tuesday getting started on the next round of the fight after a judge nixed the first-of-its-kind regulation. Bloomberg called the strongly worded court ruling a "temporary setback" and emphasizing that the city is confident about winning an appeal. He predicted that in the meantime, the novel regulation would become a bellwether in the national fight against obesity.

"I don't think there's any doubt that momentum is moving in our direction," he said after convening a thicket of news cameras at a Manhattan diner that is voluntarily complying with the stricken-down rule.

While the city has ultimately prevailed in some similar cases, legal experts say it's unclear how judges will view whether health regulators overshot their authority in this one. Moreover, the appeal could linger beyond Bloomberg's term when it ends this year, and several of his would-be successors don't appear to have his appetite for pursuing it.

State Supreme Court Justice Milton Tingling's decision, issued Monday, says that the soda rule has so many exemptions that it's illegally arbitrary and that the Bloomberg-appointed Board of Health trod on the City Council's turf to impose it.

"This is a serious challenge to the city," particularly for saying the health board violated the separation-of-powers principle, said James Fanto, a Brooklyn Law School professor who specializes in business law and regulation.

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The city filed a formal notice Tuesday of its appeal. The American Beverage Association and other opponents of the rule said they felt the judge's decision was strong and were confident in it.

The city's appeal will likely argue that the judge took too narrow a view of the 147-year-old health board's powers. Officials have noted that other groundbreaking health initiatives on Bloomberg's watch have survived court challenges: a 2006 rule requiring some restaurants to post calorie counts, for instance, was struck down, revised, challenged again and upheld.

To attack the finding that the law is arbitrarily ridden with loopholes, city lawyers could argue that any given regulation can't be expected to get at every source of a problem, said Cary Coglianese, a University of Pennsylvania Law School professor who studies regulatory processes.

The city also is stressing what it sees as the stakes: a city population in which 60 percent of adults and 40 percent of children are obese, $4 billion a year in obesity-related medical spending in the city alone, and national and local studies linking sugary drinks to weight gain.

Government actions generally enjoy some leeway in courts in light of the separation of powers. But judges tend to afford less deference to the decisions of executive agencies than to the majoritarian work of legislatures—in this scenario, the City Council, said Steven Goldberg, a Pace Law School professor and former dean.

Bloomberg said Tuesday he has no plans to try to get the council to pass the soda rule, which bars eateries as disparate as corner delis and arena concessions from selling non-diet soda, sweetened juice and some other sugary drinks in portions bigger than 16 ounces. The city believes in the health board's authority over the issue and wants a higher court to affirm it, he said.

The appeal could easily take a year or more, potentially leaving the next mayor with a decision about whether to keep pressing it.

Several Republican and Democratic contenders have criticized the ban. "Thank goodness the court intervened," cheered one, Democrat John Liu, now the city comptroller.

City Council Speaker and frequent Bloomberg ally Christine Quinn, so far the Democratic front-runner in the heavily Democratic city, told CNN host Piers Morgan on Monday that the big-soda ban "isn't something I support." But she said Tuesday that officials should "let this make its way through the court, and we'll see where we end up."

Meanwhile, one of her Democratic rivals, city Public Advocate Bill de Blasio, was by Bloomberg's side applauding the measure.

"This is a crisis that must be addressed, he said, and "the mayor is doing that."

For a mayor who has made unconventional public health initiatives a key part of his agenda, Monday's court decision is at least a distracting roadblock.

The soda rule revived complaints that he's turning a tough town into a "nanny state." The New York Post has pictured him as "Mayor Poppins" alongside stories about it.

And the court ruling could fuel longtime perceptions of him as high-handed and sometimes deaf to the democratic process, a criticism that hit a fever pitch when he persuaded the City Council to extend term limits in 2008 so he could run again after voters had twice approved the previous limit.

Tingling, the trial-level court judge, called the sugary drinks regulation "arbitrary and capricious," language that comes from a legal standard but could strike non-lawyers as an echo of the "imperial mayor" his critics sometimes deride.

Fairly or not, the ruling "makes it easier to paint him as someone who's kind of overbearing and autocratic," said Queens College political science professor Michael Krasner.

New Yorkers are divided on the issue, with 51 percent against it and 46 percent supporting it in a recent Quinnipiac University poll.

For his part, Bloomberg shrugs off questions about whether the soda contretemps has sapped his political capital, saying he's "trying to do what's right" and thinks the public ultimately will agree with him. He foresees smaller sodas becoming as normal as smoke-free bars, another change that was controversial when he led a charge for it more than a decade ago. The City Council passed it in 2002.

"The mayor's right: Leadership requires sticking your neck out," says Douglas Muzzio, a Baruch College political science professor who specializes in city politics.

As for whether the public will reward him for it, "This may not be one of those cases, or it may be."

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